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ARTICLE
REGULATING LAW ENFORCEMENT’S
USE OF DRONES: THE NEED
FOR STATE LEGISLATION
MICHAEL L. SMITH*
The recent rise of domestic drone technology has prompted privacy advo-
cates and members of the public to call for the regulation of the use of drones by
law enforcement officers. Numerous states have proposed legislation to regulate
government drone use, and thirteen have passed laws that restrict the use of
drones by law enforcement agencies. Despite the activity in state legislatures,
commentary on drones tends to focus on how courts, rather than legislative bod-
ies, can restrict the government’s use of drones. Commentators call for wider
Fourth Amendment protections that would limit government surveillance. In the
process, in-depth analysis of state drone regulations has fallen by the wayside.
This Article takes up the task of analyzing and comparing state laws regu-
lating the government’s use of drones for law enforcement purposes. While the
oldest of these laws was enacted in 2013, the thirteen laws passed thus far ex-
hibit wide variations and noteworthy trends. This Article surveys the quickly
expanding list of laws, notes which regulations are likely to constrain govern-
ment drone use, and identifies laws that provide only the illusion of regulation.
While some state legislatures have taken up the task of regulating govern-
ment drone use, many have left the determination of standards for governmental
drone use to the judiciary. This Article advances the thesis that the judiciary is
ill-suited to address the rapidly-developing area of drone technology. Long-es-
tablished Supreme Court precedent leaves the judiciary with very little power to
curtail government drone use in law enforcement investigations. And were the
judiciary to attempt the task of restricting law enforcement’s use of drones, the
solutions the courts would propose would likely be imprecise, unpredictable,
and difficult to reverse. In light of these concerns, privacy advocates and law
enforcement agencies alike should support the regulation of government drone
use by state legislatures. Moreover, those states that have yet to develop their
own regulations should draw upon lessons that can be learned from existing
laws and the differences between them.
I. INTRODUCTION
Domestic drone use is on the rise. Private actors use drones for hobbyist
purposes, and there is a strong push for the increased use of drones for com-
mercial purposes.1 The Federal Aviation Administration (“FAA”) projects
* J.D., UCLA School of Law. I would like to thank the editors of the Harvard Journal on
Legislation for their helpful suggestions and thorough editing. The views expressed in this
paper are mine alone and do not necessarily represent the views of my employer.
1
See Alistair Barr et al., Google Drones Lift Industry Hopes, WALL ST. J., Aug. 29, 2014,
available at http://online.wsj.com/articles/google-drones-lift-industry-hopes-1409353944,
archived at http://perma.cc/BZ77-4V4J (reporting that Google’s recent statement that it intends
to use drones indicates growing confidence in drone technology and its commercial application
potential).
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that 30,000 private drones may be flying in United States airspace by the
year 2020.2 Many Americans are concerned about the rise of domestic
drones. Pew Research reports that sixty-three percent of Americans think
that “it would be a change for the worse if personal and commercial drones
are given permission to fly through most U.S. airspace.” 3
The federal government is also seeking to increase its use of drone tech-
nology, with multiple federal agencies devoting resources to use drones to
assist in law enforcement activities.4 Drones are quickly becoming cheaper
and more capable, which makes them cost-effective, versatile tools for law
enforcement agencies.5
State governments are scrambling to address the regulatory issues that
these drones raise.6 Issues of privacy and government overreach are the most
common concerns and have prompted a substantial amount of legislation.
Numerous states have enacted and proposed laws that would regulate a vari-
ety of drone uses, including private drone use that invades other people’s
privacy, the operation of weaponized drones, and law enforcement agencies’
ability to use drones.
This Article addresses state laws that limit the ability of law enforce-
ment agencies to use drones for surveillance and criminal investigation pur-
poses. The aim of this Article is twofold. The initial goal is to survey those
states that have passed regulations of drones and to compare the differences
between these regulations. The ultimate goal is to advance the thesis that the
legislative regulation of drones is preferable to their regulation by the courts,
which would occur in the absence of legislative regulation. While it may be
difficult for governments to adapt to changing technology, the courts have
less flexibility and fewer resources to adequately regulate government drone
use—which leaves state legislatures as the best avenue for addressing the
issue.7
2
Shaun Waterman, Drones Over U.S. Gets OK by Congress, WASH. TIMES, Feb. 7, 2012,
available at http://www.washingtontimes.com/news/2012/feb/7/coming-to-a-sky-near-you/
?page=all, archived at http://perma.cc/PP3S-XKGB.
3
Aaron Smith, U.S. Views of Technology and the Future, PEW RESEARCH INTERNET PRO-
JECT (Apr. 17, 2014), http://www.pewinternet.org/2014/04/17/us-views-of-technology-and-
the-future/, archived at http://perma.cc/Y9R4-VDQC (emphasis in original).
4
Gregory S. McNeal, DOJ Report Reveals Details of Domestic Drone Usage, FORBES,
Sept. 28, 2013, available at http://www.forbes.com/sites/gregorymcneal/2013/09/28/doj-re-
port-reveals-details-of-domestic-drone-usage/, archived at http://perma.cc/H4WS-CSXG.
5
For a detailed breakdown of the rise of drone usage and the fall of their prices, see
Hillary B. Farber, Eyes in the Sky: Constitutional and Regulatory Approaches to Domestic
Drone Deployment, 64 SYRACUSE L. REV. 1, 11–18 (2014).
6
See Domestic Drones Move Faster than FAA: Our View, USA TODAY, Dec. 8, 2013,
available at http://www.usatoday.com/story/opinion/2013/12/08/domestic-drones-federal-avia-
tion-administration-editorials-debates/3911705/, archived at http://perma.cc/G2RM-MBAZ
(noting that the hype surrounding drone development is leading to rising drone use and that
lawmakers must speed up the regulation process to address these changes).
7
By contrast, courts may be able to adequately regulate other aspects of drone use. For
instance, courts may apply strict liability rules to tort cases that involve drones. See Michael
Smith, Danger From Above: Who’s Liable When Drones Fall From the Sky?, TECHLAWGIC
(June 26, 2014), http://techlawgic.com/2014/06/confronting-danger-falling-drones-argument-
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13
See infra Part III.B (discussing how courts may try to restrict government drone use and
why this effort on the part of courts is undesirable).
14
See infra Part II.B.
15
See infra Part II.A (discussing laws pertaining to the government’s use of drones to
reconstruct and photograph crime scenes and traffic accidents).
16
But see John Villasenor, What is a Drone Anyway?, SCI. AM. (Apr. 12, 2012), http://
blogs.scientificamerican.com/guest-blog/2012/04/12/what-is-a-drone-anyway/, archived at
http://perma.cc/X6YK-9S9D (arguing that the term, “drone,” should only be used to label
devices that can fly “without a human in control”).
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ment drone use are preferable to judicial intervention. Judges have limited
resources to tailor restrictions over government drone use, and courts will
either provide too little privacy protection or begin to use unpredictable
tests. In light of this dilemma, the ideal approach for regulating drones is for
state legislatures to develop carefully tailored legislation that deals with the
nuances of drone technology. While these laws may not be perfect, they are
better than the judicial alternative.
As drone use has ballooned in the past several years, states have reacted
by passing a number of laws addressing the rise in drone technology. Nu-
merous other states have proposed legislation regulating the government’s
use of drones.17 These proposals have met with mixed success.
States that have successfully passed legislation regulating government
drone use include Florida,18 Idaho,19 Illinois,20 Indiana,21 Iowa,22 Montana,23
North Carolina,24 Oregon,25 Tennessee,26 Texas,27 Utah,28 Virginia,29 and Wis-
consin.30 The following Sections lay out the relevant provisions of each
state’s law regulating government use of drones. This Article places these
laws under three broad categories: those that allow broad judicial exceptions
to warrant requirements; those that explicitly provide statutory exceptions;
and those that contain moratoriums on government drone use.
17
See Allie Bohm, Status of 2014 Domestic Drone Legislation in the States, AM. CIVIL
LIBERTIES UNION (June 30, 2014), https://www.aclu.org/blog/technology-and-liberty/status-
2014-domestic-drone-legislation-states, archived at https://perma.cc/3CCC-7L55 (detailing a
list of regulations of government drone use that have been proposed and passed).
18
FLA. STAT. § 934.50 (2013).
19
IDAHO CODE ANN. § 21-213 (2013).
20
725 ILL. COMP. STAT. 167/10 et seq. (2015).
21
IND. CODE § 35-33-5-9 (2014).
22
IOWA CODE ANN. §§ 321.492B, 808.15 (West 2014) (to be finalized in 2015).
23
MONT. CODE ANN. § 46-5-109 (2013).
24
2013 N.C. Sess. Laws 1040.
25
OR. REV. STAT. § 837.310 et. seq. (2013).
26
TENN. CODE ANN. § 39-13-609 (2013).
27
TEXAS GOV. CODE ANN. § 423.002 (West 2013).
28
UTAH CODE ANN. § 63G-18-103 (West 2014).
29
2013 Va. Acts 1408.
30
WIS. STAT. § 175.55 (2014).
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ble cause to support the need for the warrant.31 However, the laws permit
law enforcement agencies to use drones without obtaining a warrant as long
as the use conforms to judicially recognized exceptions to the Fourth
Amendment’s or state constitutions’ search warrant requirements.
Alaska’s law initially appears to prohibit government drone use without
a warrant.32 But the law goes on to permit drone use for criminal investiga-
tions in a manner that falls under an existing judicial exception to the war-
rant requirement.33 Beyond the warrant requirement, Alaska requires law
enforcement agencies to obtain any applicable permits that the FAA requires
for drone operation.34 Alaska also requires law enforcement agencies to keep
records of their flights that are open to audit which record the date, time, and
purpose of each time a drone is used.35
Iowa’s law requires officers to obtain a warrant before using drones, but
also provides that a warrant is not required whenever there is an existing
state or federal exception to the warrant requirement.36 This broad provision
is somewhat narrowed by a separate statute, which prohibits law enforce-
ment agencies from using drones “for traffic law enforcement.”37
Montana’s law requires officers to obtain a warrant before using a
drone, but does not require a warrant if the information gathered by the
drone is so done “in accordance with judicially recognized exceptions to the
warrant requirement.”38 Moreover, information that is incidentally collected
during a survey of “public lands or international borders” can be introduced
in a probable cause hearing or at trial.39
Utah’s law, like Montana’s, requires officers to obtain a search warrant
before using drones to gather information unless this information is so gath-
ered “in accordance with judicially recognized exceptions to warrant re-
quirements.”40 The law also permits the government to use drone-gathered
information provided by a third party so long as the information “appears to
pertain to the commission of a crime,” or the third party believes “in good
faith” that there is an imminent risk of injury or death to some individual
and that disclosing the information to the government would remedy the
danger.41
31
See, e.g., ALASKA STAT. § 18.65.902(1)(A) (2014) (requiring law enforcement agencies
to obtain a search warrant before obtaining information with drones); ALASKA STAT.
§ 12.35.010(a) (stating that a judicial officer may issue a search warrant upon a showing of
probable cause).
32
ALASKA STAT. § 18.65.900 (2014).
33
ALASKA STAT. § 18.65.902(1)(B) (2014).
34
ALASKA STAT. § 18.65.901(a)(1) (2014).
35
ALASKA STAT. § 18.65.901(a)(5)–(6) (2014).
36
IOWA CODE ANN. § 808.15 (2014).
37
IOWA CODE ANN. § 321.492B (2014).
38
MONT. CODE ANN. § 46-5-109(1) (2013).
39
MONT. CODE ANN. § 46-5-109(2) (2013).
40
UTAH CODE ANN. § 63G-18-103(1)(a)–(b) (West 2014).
41
UTAH CODE ANN. §§ 63G-18-103(1)(c), 63G-18-103(2) (West 2014).
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The next category of state drone laws are those laws which require law
enforcement agencies to obtain warrants before using drones to gather infor-
mation, but provide various statutory exceptions to the warrant requirement.
Rather than a broadly-worded exception permitting drone use that falls
under judicially-recognized exceptions to warrant requirements, these laws
explicitly state the exceptions to the warrant requirement. Most state drone
laws belong to this category, and these laws contain a number of overlapping
exceptions.
Florida’s law prohibits the use of drones by law enforcement without a
warrant from a judge unless several narrow exceptions apply.45 Officers can
use drones without a warrant when there is a significant risk of a terrorist
attack, or when law enforcement officers are reasonably certain that the use
of a drone is necessary to prevent imminent physical harm or the imminent
escape of a suspect.46 The law further provides that any evidence obtained in
violation of the law will be inadmissible in a criminal prosecution.47
Idaho’s law restricting the government’s use of drones appears to im-
pose strict restrictions on government drone use, but it contains some nota-
ble loopholes. Law enforcement officers are generally required to obtain a
warrant before using drones to gather information.48 If the government fails
to obtain a warrant and violates the statute, anybody whose image is wrong-
fully recorded by the drone can claim statutory damages in the amount of
42
WIS. STAT. § 175.55(2) (2014).
43
Id.
44
Id.
45
FLA. STAT. § 934.50(3)–(4) (2013).
46
Id.
47
FLA. STAT. § 934.50(6) (2013).
48
IDAHO CODE ANN. § 21-213(2) (2013).
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$1,000.49 But warrants are not required when the government is responding
to an emergency or is carrying out a controlled substances investigation.50
Illinois’s law regulating government drone use is similar to Florida’s
law as outlined above.51 However, Illinois has several other exceptions to the
warrant requirement, including provisions permitting law enforcement agen-
cies to use drones without a warrant to locate missing persons, or to survey a
crime scene or the scene of a traffic collision.52
Indiana generally requires law enforcement officers to obtain a search
warrant before using drones.53 However, officers do not need to obtain a
warrant when: exigent circumstances exist; there is a “substantial likelihood
of a terrorist attack;” in disaster-response situations; in rescue operations; in
circumstances where the person observed has given consent; and in other
surveillance activities that are not related to criminal investigation.54
Oregon restricts law enforcement agencies’ use of information gathered
by drones and provides that information obtained in violation of its laws will
not be admissible in judicial proceedings.55 This information can be used at
trial, however, when: a judge has issued a warrant;56 there is probable cause
to believe that a crime has been committed and exigent circumstances ex-
ist;57 the person or people observed have consented;58 the information has
been collected during a response to an emergency;59 or the government has
used the drones to observe and reconstruct a crime scene.60
Tennessee’s law explicitly states that the government’s use of a drone to
collect information is a search within the meaning of the Fourth Amendment
as well as the Tennessee Constitution, and that evidence collected in viola-
tion of the statute is inadmissible in court.61 Like many of the statutory
schemes described in this subsection, Tennessee’s law goes on to state a
number of exceptions to its warrant requirement, including: terrorist attack
scenarios; situations where there is a risk of imminent harm to somebody’s
life; and missing person searches.62
Texas law prohibits the collection of images of a person or a person’s
property with a drone if those images are collected with “the intent to con-
49
IDAHO CODE ANN. § 21-213(3) (2013). The statute’s restriction on drone use and the
statutory damages provision applies to both the government and to private parties.
50
IDAHO CODE ANN. § 21-213(2) (2013).
51
725 ILL. COMP. STAT. 167/10, 167/15(1)–(3) (2015).
52
725 ILL. COMP. STAT. 167/15(4)–(5) (2015).
53
IND. CODE § 35-33-5-9(a) (2014).
54
IND. CODE §§ 35-33-5-9(b)(1)(A)–(E), 35-33-5-9(b)(2) (2014).
55
OR. REV. STAT. § 837.310 (2013).
56
OR. REV. STAT. § 837.320(1)(a) (2013).
57
OR. REV. STAT. § 837.320(1)(b) (2013).
58
OR. REV. STAT. § 837.330 (2013).
59
OR. REV. STAT. § 837.335 (2013).
60
OR. REV. STAT. § 837.340 (2013).
61
TENN. CODE ANN. § 39-13-609(g) (2013).
62
TENN. CODE ANN. § 39-13-609(d)(1), (3)–(5) (2013).
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The final category of state drone laws includes those states which have
placed a moratorium on government drone use. While most states have cho-
sen to regulate government drones using warrant requirements, North Caro-
lina and Virginia have placed blanket restrictions on government drone use
with only narrow exceptions.
North Carolina’s law places a moratorium on drone use by the govern-
ment. The law prohibits government entities from obtaining, operating, and
using information collected by a drone.66 The only way a government entity
can get around this prohibition is by obtaining a specific exemption from
this statute’s restriction from the North Carolina’s Chief Information Of-
ficer.67 The law further states that the prohibition on government drone use is
to remain in effect until December 31, 2015.68 In addition to the moratorium,
North Carolina law restricts law enforcement officers from using drones to
conduct surveillance unless the agency first obtains a warrant, conducts the
surveillance in an effort to combat an imminent terrorist attack, or is con-
ducting surveillance of something in “plain view” from a location where
law enforcement agents have “a legal right to be.”69 In the event that the
government violates these restrictions, people who are the objects of govern-
ment surveillance have the right to sue, and they may obtain liquidated dam-
ages of $5,000 for “each photograph or video that is published or otherwise
disseminated,” plus attorney’s fees.70 While these restrictions are arguably
inapplicable—since law enforcement agencies are prohibited from using
drones in the first place due to North Carolina’s moratorium—these restric-
tions may end up staying in place once the moratorium expires.
Virginia also has enacted a moratorium that prohibits government drone
use.71 The only exceptions to the moratorium are for when the government
uses drones to assist in a search for a missing child during an Amber Alert,
63
TEXAS GOV. CODE ANN. § 423.003 (2013). The term “surveillance” is not defined.
64
TEXAS GOV. CODE ANN. § 423.005 (2013).
65
TEXAS GOV. CODE ANN. § 423.002(a)(6)–(9) (2013).
66
2014 N.C. Sess. Laws 25–26.
67
Id.
68
2014 N.C. Sess. Laws 25.
69
2014 N.C. Sess. Laws 227–28.
70
2014 N.C. Sess. Laws 228.
71
2013 Va. Acts 1408.
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The thirteen states74 that have passed laws regulating the government’s
use of drones have all done so in an effort to restrain—or to appear to re-
strain—the government’s use of drone technology. A common worry about
government drone use is that the introduction of drones to the law enforce-
ment toolkit will threaten people’s privacy. Privacy advocates worry that the
government will use drones to engage in widespread, continuous surveil-
lance, which would require fewer resources and less manpower than
equivalent surveillance from planes or helicopters would require.75 At the
same time, advocates for law enforcement agencies note that drones can be a
useful tool and that their ability to constantly monitor a particular area can
aid in providing security and preventing crime.76
The states that have enacted legislation regulating government use of
drones should balance the interests of privacy and security, which often con-
flict. To address the concerns of privacy advocates, states seek to enact laws
that meaningfully constrain the power of law enforcement to abuse or
overuse drone technology. But law enforcement agencies must be given
some leeway so that they may take advantage of technological
developments.
This Section evaluates how well the state laws that have been passed
address these concerns and handle the situations where these interests come
into conflict. First, this Section discusses the appeal of the warrant require-
ment to privacy advocates and some limits on this requirement that can pro-
72
Id.
73
Id.
74
This is the number of states that have passed laws regulating government drone use at
the time of this Article’s publication. This number is likely to change, as additional state legis-
latures introduce and pass laws restricting government drones.
75
See Kaminski, supra note 8, at 72 (“Because of their relatively low cost and hovering R
abilities, drones give rise to a specter of pervasive surveillance”); Calo, supra note 8, at 31–32 R
(discussing the potential for drone technology and surveillance to become widespread and the
privacy concerns that this will likely raise).
76
See Maggie Clark, Boston Bombings Show Future Use For Police Drones, HUFFINGTON
POST (May 1, 2013), http://www.huffingtonpost.com/2013/05/01/boston-bombing-drones_n_
3192694.html, archived at http://perma.cc/3ZQD-KVPC.
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Eleven of the thirteen states that regulate government drone use require
law enforcement agencies to obtain a warrant before gathering information
with a drone.77 Requiring law enforcement agencies to obtain warrants may
discourage the blanket surveillance that worries privacy advocates. Warrants
would require law enforcement agencies to obtain enough information to
have probable cause that a crime has been committed before being allowed
to use drones to gather information.78 This information must then be
presented to a judge in a manner that describes the scope of the warrant with
particularity.79
Using drones for broad surveillance without any particular suspects in
mind would likely not meet the particularity requirement of a warrant.80 Re-
quiring law enforcement officers to obtain a warrant before using drones
limits the ability of officers to engage in broad surveillance, obtain incrimi-
nating information, and then claim that this establishes a basis for probable
cause.81 Because the warrant requirement would curtail law enforcement
agencies’ ability to engage in overly broad use of drones, privacy advocates
encourage the adoption of warrant requirements in state laws regulating gov-
ernment drone use.82
While warrants are appealing to privacy advocates, the enactment of
overly broad restrictions on drone use can curtail some non-invasive, benefi-
cial uses of drones, such as diagramming crime scenes or traffic accidents
and monitoring traffic violations. Additionally, while privacy advocates may
wish to restrict the government’s ability to use drones for surveillance, some
surveillance can still be valuable, and drones can help police collect evi-
77
FL. STAT. § 934.50(3)–(4) (2013); IDAHO CODE ANN. § 21-213(2) (2013); 725 ILL.
COMP. STAT. 167/10, 167/15(1)–(3) (2014); IND. CODE § 35-33-5–9(a) (2014); IOWA CODE
ANN. § 808.15 (2014); MONT. CODE ANN. § 46-5-109(1) (2013); OR. REV. STAT.
§ 837.320(1)(a)–(b) (2013); TENN. CODE ANN. § 39-13-609(d)(2) (2013); TEXAS GOV. CODE
ANN. § 423.002(a)(7) (2013); UTAH CODE ANN. § 63G-18-103(1)(a) (2014); WIS. STAT.
§ 175.55(2) (2014).
78
See U.S. CONST. amend. IV (stating that warrants shall only issue on probable cause);
see also Wayne R. LaFave et al., 2 CRIMINAL PROCEDURE § 3.3(a)–(b) (3d ed. 2013) (describ-
ing the requirement for probable cause and the nature of probable cause).
79
See LaFave et al., supra note 78, at 3.4(e) (outlining that a warrant must describe with R
particularity the area to be searched, such as an address or unit number in the event that an
apartment complex is to be searched).
80
See id.
81
See, e.g., OR. REV. STAT. § 837.310(2)(b) (2013) (stating that information collected by
a drone without a warrant cannot be used to establish probable cause that a crime has been
committed).
82
See Farber, supra note 5, at 45–46. R
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83
See sources cited infra note 87. R
84
725 ILL. COMP. STAT. 167/15 (4) (2014); IDAHO CODE ANN. § 21-213(2) (2013); TENN.
CODE ANN. § 39-13-609(d)(5) (2013); TEXAS GOV. CODE ANN. § 423.002(a)(8)(D) (2013);
2013 Va. Acts 1408.
85
FL. STAT. § 934.50(3)–(4) (2013); 725 ILL. COMP. STAT. 167/15 (3) (2014); OR. REV.
STAT. § 837.335(2)(a) (2013); TENN. CODE ANN. § 39-13-609 (d)(3) (2013); TEXAS GOV.
CODE ANN. § 423.002(a)(8)(E) (2013); WIS. STAT. § 175.55(2) (2014).
86
FL. STAT. § 934.50(3)–(4) (2013); 725 ILL. COMP. STAT. 167/15 (1) (2014); IND. CODE
§ 35-33-5-9(b)(1)(B) (2014); TENN. CODE ANN. § 39-13-609(d)(1) (2013).
87
See Matt Buxton, Drones Could Improve Police Work at Crash Investigations, NEW-
SMINER.COM (Aug. 28, 2014), http://www.newsminer.com/news/local_news/drones-could-im-
prove-police-work-at-crash-investigations/article_bc9e8f1c-2e7b-11e4-8444-0017a43b2370
.html, archived at http://perma.cc/A2P9-NJFA (detailing how research is demonstrating that
drones can quickly photograph crime scenes and provide helpful evidence for juries); see also
Law Enforcement: Crime Scene Investigation and Gathering Evidence, DRAGANFLY INNOVA-
TION INC., http://www.draganfly.com/uav-helicopter/draganflyer-x8/applications/government
.php, archived at http://perma.cc/FW68-36RR (noting in an advertisement that aerial photogra-
phy can quickly photograph the entire scene while avoiding contamination); Traffic Crash
Reconstruction, TRAFFIC RECONSTRUCTION & TRANSPORTATION COMPLIANCE, http://www.tran
dtc.com/page/accident-reconstruction (last visited Apr. 16, 2015), archived at http://perma.cc/
QB2X-6DXB (advertising how an accident reconstruction company uses drones to obtain ae-
rial shots of accident scenes).
88
725 ILL. COMP. STAT. 167/15 (5) (2014); OR. REV. STAT. § 837.340 (2013); TEXAS
GOV. CODE ANN. § 423.002(a)(8)(B)–(C) (2013).
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“public place,” which could probably be read to cover crime and accident
scene diagraming scenarios, unless a crime takes place on private property.89
An exception to the warrant requirement in situations involving crime
or accident scene photography would further the interests of law enforce-
ment without infringing on privacy interests. When a crime occurs on public
property, it is unclear what individual privacy rights would be violated by a
drone used to document the scene. When a crime occurs on private property,
if police are already on the property investigating that crime, it is unlikely
that using a drone to monitor that crime scene would infringe the property
owner’s privacy any more than the investigation that is underway. Accord-
ingly, states that are considering or have enacted warrant requirements for
law enforcement drone use may benefit from enacting exceptions that permit
police officers to use drones to diagram crime and accident scenes. This
exception brings the payoff of allowing law enforcement to use new technol-
ogy with very little risk to privacy interests.
This issue of states failing to include a sensible exemption to a warrant
requirement illustrates a common drawback of the legislative approach.
Drones are an emerging technology, and their range of useful applications
has yet to be fully realized. While a risk of overly restrictive laws exists, this
risk can be addressed through careful drafting and continued updating of
laws after they are enacted.
89
WIS. STAT. § 175.55(2) (2014).
90
MONT. CODE ANN. § 46-5-109(1) (2013); see UTAH CODE ANN. § 63G-18-103(1)(b)
(2014).
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91
WIS. STAT. § 175.55(2) (2014).
92
IOWA CODE ANN. § 808.15 (2014). This broad exception to the warrant requirement is
somewhat limited by a different Iowa law that places a blanket prohibition on law enforcement
drone use in “traffic law enforcement” situations. IOWA CODE ANN. § 321.492B (2014).
93
U.S. CONST. amend. IV.
94
389 U.S. 347, 361 (1967) (Harlan, J., concurring).
95
See, e.g., California v. Ciraolo, 476 U.S. 207, 211 (1986).
96
Id. at 209.
97
Id.
98
Id. at 209–10.
99
Id. at 214–15.
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lawful vantage point and did not intrude on the defendant’s property when
making their observations from the plane.100
Similarly, in Florida v. Riley, officers observed marijuana growing in a
greenhouse in the defendant’s fenced-in backyard from the vantage point of
a helicopter 400 feet above the ground.101 Officers used this information to
obtain a search warrant for the property, which, when executed, revealed
that marijuana was indeed being grown in the defendant’s greenhouse.102 A
plurality of the Justices held that no Fourth Amendment search had taken
place because the officers flew their helicopter within navigable airspace and
viewed the defendant’s drugs from this lawful vantage point.103 Because FAA
regulations permitted the police to fly at the height of 400 feet, the defendant
could not have reasonably expected that no one would fly over his house at
that height, and thus the officers had not infringed upon his Fourth Amend-
ment interests.104 Justice O’Connor emphasized in her concurrence that the
important inquiry was not what FAA regulations permitted, but rather
whether members of the public commonly flew helicopters at a height of
400 feet.105 Because there was reason to believe that the public commonly
flew helicopters over the defendant’s property at this height, Justice
O’Connor concluded that the defendant did not have a reasonable expecta-
tion that his property would not be viewed from helicopters flying at that
height.106
These two cases are significant because they reveal that law enforce-
ment agencies have a great deal of leeway when it comes to conducting
aerial surveillance of suspects. Ciraolo and Riley establish that law enforce-
ment officers can conduct surveillance over a suspect’s property near the
exterior of the home so long as the surveillance is done in a manner consis-
tent with the behavior of the general public.107 Moreover, other opinions of
the Court establish that people do not have a reasonable expectation of pri-
vacy in their public movements, and so the government may use drones to
monitor movements of people when they are outside of the home without
implicating the Fourth Amendment.108
The Fourth Amendment thus permits a wide range of government sur-
veillance activities, including observing a person or home from the air, or
tracking a person’s public movements. These are precisely the types of activ-
100
Id.
101
488 U.S. 445, 448 (1989).
102
Id. at 448–49.
103
Id. at 450–51.
104
Id.
105
Id. at 455 (O’Connor, J., concurring).
106
Id.
107
See also Dow Chemical Co. v. United States, 476 U.S. 227, 238–39 (1986) (holding
that no Fourth Amendment search occurred when a government agent took aerial photographs
of the land surrounding a factory).
108
See United States v. Knotts, 460 U.S. 276, 277–79 (1983); see also United States v.
Karo, 468 U.S. 705, 711–15 (1984).
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ities that law enforcement agencies’ drones would carry out. Accordingly, as
long as the government uses drones for these purposes the government
would not conduct any Fourth Amendment searches, and thus would not be
constitutionally required to obtain search warrants.
109
See sources cited supra notes 36, 38, 40 & 42. R
110
MONT. CODE ANN. § 46-5-109(1) (2013); UTAH CODE ANN. § 63G-18-103(1)(b)
(2014).
111
See discussion supra Part III.C.
112
WIS. STAT. § 175.55(2) (2014).
113
See Katz, 389 U.S. at 361 (Harlan, J., concurring); see also Ciraolo, 476 U.S. at 211.
114
See cases cited supra notes 95-106 and accompanying text. R
115
IOWA CODE ANN. § 808.15 (2014).
116
See IOWA CODE ANN. § 321.492B (2014) (prohibiting the government’s use of drones
for traffic law enforcement).
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117
IDAHO CODE ANN. § 21-213(2) (2013).
118
See Melanie Reid, Grounding Drones: Big Brother’s Tool Box Needs Regulation Not
Elimination, 20 RICH. J.L. & TECH. 9, 9 (2014) (noting several instances of the government
using drones for drug investigations); see also Jeff Chirico, Are Police Drones Invading Your
Privacy?, CBS46.COM (June 3, 2013, 2:48 PM), http://www.cbs46.com/story/22175057/are-
police-drones-invading-your-privacy, archived at http://perma.cc/HW7P-V8J8 (noting an ap-
plication by the Gadsden Police Department in Alabama to use drones “for secret surveillance
of drug transactions”).
119
This exception itself may be limited, however, if a state adopts an exception like
Iowa’s, which provides that warrants are not required in situations where there are existing
federal exceptions to the warrant requirement. See IOWA CODE ANN. § 808.15 (2014).
120
See Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths
and the Case for Caution, 102 MICH. L. REV. 801, 858–60 (2004) (hereinafter Fourth Amend-
ment) (noting that developing technology presents complicated factual questions that courts
are ill-equipped to address).
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Privacy advocates are concerned that the government may use drones to
engage in constant, blanket surveillance of people.124 Drone technology has
121
See, e.g., JAY STANLEY & CATHERINE CRUMP, AM. CIVIL LIBERTIES UNION, PROTECT-
ING PRIVACY FROM AERIAL SURVEILLANCE: RECOMMENDATIONS FOR GOVERNMENT USE OF
DRONE AIRCRAFT 13–15 (2011) (arguing that the pervasive nature of drone surveillance impli-
cates the Fourth Amendment); Timothy T. Takahashi, Drones and Privacy, 14 COLUM. SCI. &
TECH. L. REV. 72, 108–12 (2012) (arguing that drones may be a “catalyst” that prompt a new
“paradigm” of Fourth Amendment review that would apply to the government’s use of ad-
vanced technology); see also Sean Sullivan, Domestic Drone Use and the Mosaic Theory
24–26, UNIVERSITY OF NEW MEXICO SCHOOL OF LAW LEGAL STUDIES RESEARCH PAPER SE-
RIES (2013), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2212398,
archived at http://perma.cc/VL8K-JT86 (arguing that in light of the Fourth Amendment’s fail-
ure to adequately regulate government drone use, the government should apply the “mosaic
theory” of the Fourth Amendment so that courts can restrict government drone surveillance).
122
For a broader exploration of how commentators tend to respond to the prospect of
technological change by advocating broad interpretations of the Fourth Amendment, see
Fourth Amendment, supra note 120, at 803–04. R
123
Federal regulation, as an alternative or supplement to state regulation, is discussed in
Section IV.D.
124
Kaminski, supra note 8, at 72; Calo, supra note 8, at 32. R
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made significant progress over the last several years, and its decreasing cost
and increasing capabilities raise the concern that law enforcement agencies
could use drones extensively and invasively.125 In spite of this danger, there
is very little that courts can do to curtail government drone surveillance
under existing Fourth Amendment case law.126 As has already been dis-
cussed, Ciraolo and Riley establish that the government may engage in aerial
surveillance of people’s yards and the exterior of their homes as long as it
does so to no greater extent than what would be allowed of the general pub-
lic. Moreover, the Supreme Court has held that people do not have a reason-
able expectation of privacy in their public movements, meaning that drones
may observe people’s walking and driving patterns without implicating the
Fourth Amendment.127
Privacy advocates note that a passage in United States v. Knotts indi-
cates that all might not be lost on the Fourth Amendment front.128 While the
holding in Knotts supports the argument that the government is permitted to
observe people’s public movements,129 part of the opinion suggests that
“dragnet”type surveillance may warrant the application of “different consti-
tutional principles.”130 Those who hope to see courts curtail government
drone use on Fourth Amendment grounds argue that this portion of Knotts
may require different rules in situations where the government engages in
constant surveillance of an individual’s public activity.131
While there may indeed be some support for this argument in cases
more recent than Knotts, the limit on “dragnet” type surveillance may not be
particularly helpful for privacy advocates. The opinion certainly contains the
promising line: “[I]f such dragnet type law enforcement practices as re-
spondent envisions should eventually occur, there will be time enough then
to determine whether different constitutional principles may be applica-
ble.”132 But in context, the Court makes this statement while dismissing a
slippery-slope argument.133 The line is not necessary for the Court’s ruling in
the case, nor is it a promise that the Court will indeed apply different princi-
ples in a case involving dragnet surveillance. Rather, the Court is simply
telling the defendant that concerns of dragnet surveillance have no bearing
on the case at hand.
In light of controlling Supreme Court case law, privacy advocates
would be hard-pressed to curtail government drone use by raising Fourth
125
Farber, supra note 5, at 18. R
126
See Jack M. Balkin, The Constitution in the National Surveillance State, 93 MINN. L.
REV. 1, 19–21 (2008) (arguing that the Fourth Amendment has been weakened and is not an
adequate avenue for addressing increased government surveillance).
127
See Knotts, 460 U.S. at 277–79, 282; see also Karo, 468 U.S. at 711–15.
128
See STANLEY & CRUMP, supra note 121, at 14. R
129
See Knotts, 460 U.S. at 282.
130
Id. at 284.
131
See STANLEY & CRUMP, supra note 121, at 14. R
132
Knotts, 460 U.S. at 284.
133
Id. at 283–84.
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Amendment objections in the courts.134 The Supreme Court has held that
people do not have a reasonable expectation of privacy that restricts the gov-
ernment from observing their houses and movements from above. Accord-
ingly, while privacy advocates may wish to challenge law enforcement
drone use on Fourth Amendment grounds, these advocates would face an
uphill battle in doing so.135 One recent development in Fourth Amendment
jurisprudence, however, may give privacy advocates an alternative line of
case law to pursue restrictions on the use of drones by law enforcement.
While the likelihood of success for this line of attack is unclear, it does not
undermine the need for state legislative solutions for drone regulation.
Most Fourth Amendment case law suggests that courts will be largely
incapable of restricting government drone use. There are, however, some
indications in recent cases that courts could apply an expanded version of
Fourth Amendment protections in light of developing technology. Although
there are alternative theories of expanded protections,136 the one with the
most support is the “mosaic theory” of the Fourth Amendment.137 This sub-
section discusses what might happen if privacy advocates succeed at con-
vincing courts to curtail government drone use by appealing to the mosaic
theory of the Fourth Amendment. While some privacy interests may end up
being protected by these rulings, relying on the judiciary to tailor this protec-
tion leads drone laws down a dangerous, uncertain road.
134
Admittedly, some states may rely on their own constitutional prohibitions of unreason-
able searches and seizures to place heightened restrictions on government drone use. However,
even if courts were to designate government drone use as a Fourth Amendment search, their
doing so might not have much impact on the government’s continued use of the technology.
See GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL
CHANGE? 320–24 (1993) (discussing the “inefficacy” of the Fourth Amendment’s exclusionary
rule).
135
Reid, supra note 118, at 82–83 (2014). R
136
See Bankston & Soltani, infra note 162. R
137
See Orin S. Kerr, The Mosaic Theory of the Fourth Amendment, 111 MICH. L. REV.
311, 313 (2012) (hereinafter Mosaic Theory); see also discussion infra Part IV.B.I.
138
Id.
139
Id.
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The mosaic theory finds its origins in the case of United States v. May-
nard,140 and in its potential adoption by the Supreme Court in United States
v. Jones.141 In Jones, law enforcement officers suspected that the defendant
was trafficking drugs, and installed a Global Positioning System (“GPS”)
tracking device on the defendant’s car.142 The officers had obtained a warrant
that required them to attach the device within ten days, but they attached the
device on the eleventh day.143 The GPS tracking device sent constant updates
to officers that detailed the defendant’s location and movements, and govern-
ment agents collected this information for twenty-eight days.144 When the
case went to trial, the court ruled that the government could introduce this
GPS data during their prosecution, reasoning that the defendant did not have
a reasonable expectation of privacy in the public movements of his vehicle,
and that collecting this information was not a Fourth Amendment search.
The Supreme Court held that the government’s use of the GPS device
was a search under the Fourth Amendment.145 The majority reasoned that the
government’s actions would have been considered a “search” under the orig-
inal meaning of the Fourth Amendment because the government had physi-
cally occupied the defendant’s property in the process of installing the GPS
device.146 The majority noted that the Fourth Amendment had historically
been interpreted to apply to situations where the government engaged in
common law trespass upon defendants’ property.147
While the majority relied on the trespass theory of the Fourth Amend-
ment, five of the nine Justices endorsed “a version” of the mosaic theory.148
In his concurrence in the judgment, Justice Alito admitted that while short-
term monitoring of a person’s public movements was not a Fourth Amend-
ment search, the government crossed over into the territory of conducting a
Fourth Amendment search after twenty-eight days of continuous monitor-
ing.149 While four weeks of GPS monitoring was enough to implicate the
Fourth Amendment, Justice Alito declined to identify a bright-line as to the
point in time where GPS monitoring became a Fourth Amendment search.150
Three other Justices joined Alito’s concurrence.
Additionally, while Justice Sotomayor joined Justice Scalia’s opinion
for the Court, she wrote a separate concurrence in which she made clear that
she would take into account the effect of long-term government monitoring
140
615 F.3d 544 (D.C. Cir. 2010).
141
132 S. Ct. 945 (2012).
142
Id. at 948.
143
Id.
144
Id.
145
Id. at 949.
146
Id.
147
Id.
148
Mosaic Theory, supra note 137, at 313. R
149
Jones, 132 S. Ct. at 964 (Alito, J., concurring in the judgment).
150
Id.
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While the mosaic theory of the Fourth Amendment may have intuitive
appeal, and while it may seem particularly suited for cases of government
drone surveillance, courts would take Fourth Amendment law down an un-
certain and dangerous road were they to adopt the mosaic theory. The mo-
151
Id. at 956 (Sotomayor, J., concurring).
152
Id. at 955–56 (Sotomayor, J., concurring).
153
Mosaic Theory, supra note 137, at 328. R
154
See discussion supra Part III.A.
155
See Sullivan, supra note 121, at 23–26 (arguing that the mosaic theory should be ap- R
plied to government drone use); see also Takahashi, supra note 121, at 110. R
156
Kaminski, supra note 8, at 72; Calo, supra note 8, at 32. R
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saic theory raises a number of problems, including the lack of a clear test for
when aggregate government actions become a search, the lack of any clear
formula for courts to use to compare different types of government drone
use when aggregating the actions into a mosaic, the danger of conflicting
decisions between and within jurisdictions, and the irreversibility of court
decisions.
The first problem with the mosaic theory is that it does not offer a clear
test for courts to use when deciding whether a government’s actions in the
aggregate constitute a Fourth Amendment search. Orin Kerr notes that the
mosaic theory is unclear and correctly points out that the three opinions in
which the mosaic theory appeared—Maynard and Justices Alito’s and
Sotomayor’s concurrences in Jones—all used different methods for deter-
mining whether a search had occurred.157
Drones present a particular problem when it comes to formulating a
clear test because they are a recent technological development. It is hard
enough to determine when a reasonable person would feel their privacy has
been violated because most people do not have knowledge or expectations of
police investigative practices.158 This decision is made even more compli-
cated when police are investigating suspects with drones—a technology that
both ordinary civilians and police officers will probably find unfamiliar and
lack knowledge or expectations regarding their use. Courts must develop a
test to determine when a person’s reasonable expectation of privacy would
be violated by police investigation tactics that employ a technology to which
most people—police and civilians—have not been exposed. This is an ex-
tremely difficult task, and it is not clear how courts will be able to develop a
consistent, predictable approach.
The second problem with the mosaic theory is that there is no clear
formula for comparing different kinds of government drone use.159 The basic
idea behind the theory is articulable: at some point, a series of individually
permissible government actions becomes invasive or oppressive enough that
a Fourth Amendment search occurs. But law enforcement agencies can use
drones in a host of ways. Is it more invasive when the government uses a
drone to peer into somebody’s backyard or when the government tracks that
person’s drive to work using a drone? When has a drone watched over some-
157
Mosaic Theory, supra note 137, at 330–31; see also United States v. Maynard: D.C. R
Circuit Deems Warrantless Use of GPS Device an Unreasonable Search, 124 HARV. L. REV.
827, 833–34 (2011) (criticizing the Maynard court’s departure from Fourth Amendment prece-
dent and characterizing the resulting test as “loosely defined”). But see Kevin S. Bankston &
Ashkan Soltani, Tiny Constables and the Cost of Surveillance: Making Cents Out of United
States v. Jones, 123 YALE L.J. ONLINE 335, 350–52 (2014) (suggesting that a mathematical
formula may be applied that increases Fourth Amendment scrutiny in situations where officers
use technology to achieve broader surveillance without the costs that similarly broad surveil-
lance would incur if carried out by traditional methods).
158
Mosaic Theory, supra note 137, at 330–31. R
159
For a more general discussion of the difficulty of aggregating government surveillance
actions into a coherent mosaic theory approach, see Mosaic Theory, supra note 137, at 333–36. R
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160
Mosaic Theory, supra note 137, at 346–47 (noting the murkiness of the mosaic theory R
and how it would be difficult for courts to apply it in practice).
161
See Wayne LaFave, “Case-By-Case Adjudication” Versus “Standardized Procedures”:
The Robinson Dilemma, 1974 S.CT.REV. 127, 141 (1974) (“A highly sophisticated set of rules,
qualified by all sorts of ifs, ands, and buts and requiring the drawing of subtle nuances and
hairline distinctions, may be the sort of heady stuff upon which the facile minds of lawyers and
judges eagerly feed, but they may be ‘literally impossible of application by the officer in the
field.’”); see also Dunaway v. New York, 442 U.S. 200, 213–14 (1979) (“A single, familiar
standard is essential to guide police officers, who have only limited time and expertise to
reflect on and balance the social and individual interests involved in the specific circumstances
they confront.”).
162
See, e.g., Bankston & Soltani, supra note 157, at 350–52 (proposing a mathematical R
approach that would evaluate the breadth of high-tech surveillance compared to the cost of
similar surveillance using conventional means).
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branch out from this precedent, and the variety of theories they might adopt
in doing so could lead to further inter-jurisdictional conflict.
The fourth problem with the mosaic theory is that decisions made by
the courts are far harder to reverse than decisions made by the legislature.
For example, a state supreme court may decide to restrict drone use in a
manner that severely constrains the activity of a law enforcement agency in
an unforeseen way. Undoing this decision will be difficult for the state, espe-
cially if the court claims to have based its decision on federal constitutional
grounds. The only way it could be changed would be for the U.S. Supreme
Court to reverse the decision, the state supreme court to reverse the decision,
or the states to ratify an amendment to the U.S. Constitution. These avenues
for changing the law of drone surveillance are far more cumbersome and
unlikely than changes via the state legislative process.163 Further, the likeli-
hood of decisions having unintended consequences is high in light of the
early nature and rapid development of drone technology.
Thus, while the mosaic theory has attracted some endorsements from
commentators, it raises a host of practical concerns in the context of judi-
cially-developed restrictions on drone usage in law enforcement. Because
the mosaic theory is the best-established avenue for courts to restrict govern-
ment drone use using the Fourth Amendment, the problems with the mosaic
theory suggest that courts are not in a good position to develop restrictions
on government drone use.
One may object that the first two problems with the mosaic theory may
seem to be inherent to any situation when a court needs to engage in line-
drawing. Courts, in dealing with questions of reasonable searches or
seizures, are required to engage in fact-intensive inquiries in order to deter-
mine the scope of reasonable expectations of privacy. The mosaic theory
may simply be one of these instances.
While a comprehensive response to this objection is beyond the scope
of this article, a brief reply is in order. What sets the mosaic theory apart
from other Fourth Amendment questions is that it requires an entirely new
layer of analysis on top of settled Fourth Amendment standards. The Su-
preme Court has taken Katz’s “reasonable expectation of privacy” standard
and formulated a number of rules that establish when a Fourth Amendment
search has taken place. Years of cases have refined doctrinal rules that obser-
vations of activities in plain view,164 information disclosed to third parties,165
163
See Mosaic Theory, supra note 137, at 350 (noting that if Congress errs in passing a R
law regulating surveillance, it can “amend its prior handiwork relatively easily”); see also
David C. Thompson & Melanie F. Watchell, An Empirical Analysis of Supreme Court Certio-
rari Petition Procedures: The Call for Response and the Call for the Views of the Solicitor
General, 16 GEO. MASON L. REV. 237, 240–41 (2009) (noting the small percentage of peti-
tions the United States Supreme Court reviews).
164
See Washington v. Chrisman, 455 U.S. 1, 5–7 (1982) (holding that officer’s observation
of contraband in plain view is not a search when the officer observed contraband from a
location where he had a right to be).
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and discarded items left in public places166 are not Fourth Amendment
searches. But under the mosaic theory, if the government carries out too
many of these non-searches, a Fourth Amendment search occurs.
The mosaic theory’s potential application across virtually all Fourth
Amendment doctrine means that the stakes are higher when courts decide to
engage in mosaic theory reasoning. This differentiates the use of the mosaic
theory from other situations where courts develop, apply, and refine rules or
standards. The likelihood that drones may prompt mosaic theory jurispru-
dence should give pause to law enforcement advocates who may otherwise
propose that legislatures stay out of regulating government drone use. In-
deed, state legislation may be the best way to ensure consistent and predict-
able regulation of drone usage, without the threat of developing a confusing
doctrine or standards that are not easily reversed.
165
See Smith v. Maryland, 442 U.S. 735, 744 (1979) (holding that there is no reasonable
expectation of privacy in numbers dialed into phones since those numbers are disclosed to
phone companies).
166
See California v. Greenwood, 486 U.S. 35, 40 (1988) (holding that there is no reasona-
ble expectation of privacy in trash bags left on the curb outside of one’s house).
167
See supra Part II.
168
State legislatures seeking broad, fact-based exceptions to the warrant requirement
could look to Idaho’s law, which contains an exception to the warrant requirement in cases
involving drug trafficking, for guidance. See IDAHO CODE ANN. §21-213(2) (2013).
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169
Farber, supra note 5, at 45. R
170
IDAHO CODE ANN. § 21-213(3) (2013).
171
See Mosaic Theory, supra note 137, at 345–46, 350; see also LaFave, supra note 161, R
at 141.
172
See TENN. CODE ANN. § 39-13-609 (2013); TEXAS GOV. CODE ANN. § 423.002 (2013);
UTAH CODE ANN. § 63G-18-103 (2014).
173
725 ILL. COMP. STAT. 167/15 (5) (2014); OR. REV. STAT. § 837.340 (2013); TEXAS
GOV. CODE ANN. § 423.002(a)(8)(B)–(C) (2013).
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exceptions could not be included in future state legislation. Since this type of
use would probably not raise significant privacy concerns, exceptions to
drone restrictions that permit the imaging of crime and accident scenes
should not meet much resistance.
Law enforcement agencies could also advocate for broader exceptions
than those that are currently present in most state laws. For example, agen-
cies could encourage states to adopt laws promoting drone use in specific
areas of law enforcement. In Idaho, for instance, law enforcement officers
are not required to obtain a warrant when they are carrying out “controlled
substance investigations.”174 This would permit law enforcement agencies to
use drones in a wide range of circumstances. Accordingly, law enforcement
agencies may wish to advocate for restrictions on drones, but simultaneously
push for wide-ranging exceptions to these laws.
Law enforcement agencies would do well to avoid going too far with
their advocacy, however. As has been discussed at length in this article, if a
state passes a law that permits warrantless drone use whenever there is an
existing exception to the warrant requirement, that law will have very little
effect on government use of drones.175 This could leave courts in virtually
the same situation as they would be were there no laws restricting govern-
ment drone use at all. If that were the case, courts might respond by applying
the mosaic theory or an alternate, broader reading of the Fourth Amendment
to regulate government drone use. While law enforcement agencies should
certainly advocate for restrictions that will best ensure safe and effective
implementation of drone technology, agencies should avoid promoting
hollow regulations that provide no effective restrictions.
State legislatures have the ability to encourage or discourage particular
types of government drone use by enacting laws that can regulate when law
enforcement officers may use drone technology. Because state laws can be
precisely tailored and readily revised, they are preferable to the broad, un-
predictable judicial alternative. Moreover, the interests of law enforcement
agencies and privacy advocates would be best served by legislative regula-
tion of government drone use. While these two interest groups may advocate
very different versions of state laws, both groups should agree that some sort
of state law should regulate the government’s use of drones.
While state laws that regulate the government’s use of drone are prefer-
able to judicial alternatives, state legislation exists in the context of efforts
by the federal government to regulate the usage of drones.176 It may not
seem clear why states, rather than the federal government, should regulate
174
IDAHO CODE ANN. § 21-213(2) (2013).
175
See discussion supra Part III.B.1.
176
See McNeal supra note 5.
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their own use of drones. The uniformity that federal regulations could
achieve may seem preferable to the variety of drone laws among the states.
Further, if the federal government eventually passes laws regulating govern-
ment drone use, these laws could preempt state legislation. State legislatures
may be reluctant to pass drone laws if the federal government will eventu-
ally be the ultimate decision-maker on drone regulations. This section ad-
dresses concerns for state legislation in the context of potential federal
regulation.
177
See U.S. CONST. art. VI (“This Constitution, and the laws of the United States which
shall be made in pursuance thereof; and all treaties made, or which shall be made, under the
authority of the United States, shall be the supreme law of the land; and the judges in every
state shall be bound thereby, anything in the Constitution or laws of any State to the contrary
notwithstanding.”).
178
See, e.g., Farber, supra note 5, at 45–46 (calling for action by “Congress and the R
states”); Reid, supra note 118, at 94 (calling for action by “state and federal regulators”). R
179
J. Tyler Black provides several proposals for federal legislation and does not go into
depth regarding state laws; but because he remains equivocal about the desirability of legisla-
tion, his commentary falls short of advocating for federal drone legislation. J. Tyler Black,
Note, Over Your Head, Under the Radar: An Examination of Changing Legislation, Aging
Case Law, and Possible Solutions to the Domestic Police Drone Puzzle, 70 WASH. & LEE L.
REV. 1829, 1865–75 (2013).
180
Kaminski, supra note 8, at 67–68. R
181
See supra Part I.
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182
See Gonzales v. Raich, 545 U.S. 1, 42 (2005) (O’Connor, J., dissenting) (quoting New
State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting)) (“One of
federalism’s chief virtues, of course, is that it promotes innovation by allowing for the possibil-
ity that ‘a single courageous State may, if its citizens choose, serve as a laboratory; and try
novel social and economic experiments without risk to the rest of the country.’”).
183
Kaminski, supra note 8, at 73. R
184
U.S. CONST. art. VI.
185
Kaminski, supra note 8, at 73. R
186
Id. at 73–74.
187
Erin Mershon & Kevin Robillard, President Barack Obama to Issue Executive Order
on Drone Privacy, POLITICO (July 23, 2014, 9:34 PM), http://www.politico.com/story/2014/07/
executive-order-drone-privacy-barack-obama-109303.html, archived at http://perma.cc/AE69-
CSD3.
188
Id.
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V. CONCLUSION
189
While the FAA recently released a notice of proposed rulemaking regarding drones, the
notice only applies to non-hobbyist, privately operated drones. See Overview of Small UAS
Notice of Proposed Rulemaking, FED. AVIATION AMIN., http://www.faa.gov/regulations_polic
ies/rulemaking/media/021515_suas_summary.pdf (last visited Apr. 16, 2015), archived at
http://perma.cc/4LXD-39EL.
190
Kaminski, supra note 8, at 73–74. R
191
See STANLEY & CRUMP, supra note 121, at 6–8 (describing the increasing use of R
drones by the federal government and state law enforcement agencies).
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and debating their own legislation. By developing clear guidelines for gov-
ernment drone use, state legislatures can balance the interests of law en-
forcement agencies and privacy advocates, and ensure that law enforcement
is able to take advantage of new technology without infringing on the pri-
vacy of citizens.